STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs ) CASE NO. 86-0842

)

PAUL D. FRENCH, M.D., )

)

Respondent, )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on October 6, 1988, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Robert D. Newell, Jr., Esquire

817 North Gadsden Street Tallahassee, Florida 32303-6313

For Respondent: Paul D. French, pro se

7114 Southgate Boulevard, Suite 9 North Lauderdale, Florida 33068

BACKGROUND

By administrative complaint filed on February 10, 1986, petitioner, Department of Professional Regulation, Board of Medicine, charged that respondent, Paul D. French, a licensed medical doctor, had violated two provisions within Subsection 458.331(1), Florida Statutes (1985). 1/ It is alleged first that in October, 1985, the Medical Licensure Commission of the State of Alabama revoked respondent's license to practice in that state.

According to the complaint, this constituted a violation of Subsection 458.331(1)(b), Florida Statutes (1985), which made it unlawful for a licensee to have his license revoked by another state licensing authority. Secondly, it was alleged that respondent was unable to safely practice medicine because of his use of drugs and alcohol or as the result of a mental or physical condition within the meaning of Subsection 458.331(1)(s), Florida Statutes (1985).

Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1987). The matter was referred by petitioner to the Division of Administrative Hearings on March 12, 1986 with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated April 10, 1986 the final hearing was scheduled on June 19, 1986, in West Palm Beach, Florida. At petitioner's request, the matter was rescheduled to December 9, 1986 at the same location and again to October 7, 1987. Upon petitioner's third request, it was rescheduled

to July 7, 1988. Finally, at respondent's request, the matter was continued to October 6, 1988 at Fort Lauderdale, Florida. On October 3, 1988, the case was transferred from Hearing Officer Linda M. Rigot to the undersigned.

At final hearing, petitioner offered petitioner's exhibits 1-3. All exhibits were received in evidence. Exhibit 3 is the deposition of Dr. Roger A. Goetz. Respondent testified on his own behalf.

The transcript of hearing was filed on October 19, 1988. Proposed findings of fact and conclusions of law were filed by petitioner on November 2, 1988. A ruling on each proposed finding has been made in the Appendix attached to this Recommended Order.

The issue is whether respondent's license as a medical doctor should be disciplined for the reasons set forth in the administrative complaint.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. At all times relevant hereto, respondent, Paul D. French, was a licensed medical doctor having been issued license number ME 0010248 by petitioner, Department Professional Regulation, Board of Medicine (DPR or Board). He has practiced medicine since at least 1968 but the date of issuance of his license is not of record. He was board certified in family practice from 1978 until 1986 when his certification expired. Respondent presently resides at 7114 Southgate Boulevard, Suite 9, North Lauderdale, Florida.

   
   

2. On August 21, 1985, the Medical Licensure Commission (Commission) for the State of Alabama filed a complaint against respondent alleging that he had violated certain statutory provisions governing the conduct of medical doctors in that state. Two days later, the Commission temporarily suspended respondent's license to practice medicine. After a hearing was conducted on September 25, 1985 the Commission entered an order on October 11, 1985 revoking his medical license. As grounds, the Commission found that urine and blood tests performed on respondent revealed the presence of alcohol and meperidine, a Schedule II controlled substance with highly addictive properties, and that this violated a prior restriction on his license. Certified copies of these documents were introduced into evidence as petitioner's exhibit 1.

   
   

3. Armed with the above information, the Board filed an administrative complaint against respondent on February 10, 1986 charging that Dr. French had violated Subsections 458.331(1)(b) and (s), Florida Statutes (1985), by having had his medical license revoked by another state and with being unable to practice medicine with reasonable skill and safety due to his use of alcohol and drugs or because of a mental or physical condition. The issuance of the complaint prompted Dr. French to initiate this proceeding.

   
   

4. On April 21, 1987, the Board filed an order of emergency suspension wherein it suspended Dr. French's license "until such time as (respondent) can demonstrate satisfactorily that he is able to practice medicine with reasonable skill and safety to his patients." That order still remains in effect.

   
   

5. Testifying by deposition on behalf of the Board was Dr. Roger A. Goetz, who is director of the Florida Medical Foundation's practitioner recovery network and an expert in the evaluation and treatment of impaired physicians.

   Doctor Goetz's deposition was taken in September 1987. According to Dr. Goetz, respondent was then unable to safely practice medicine "unless he was very carefully and almost continually supervised." Doctor Goetz opined further that, as a prerequisite to respondent returning to the practice of medicine, he be required first to have "a period of stabilization in his life followed by a reevaluation months from now." At that time, Dr. Goetz found a decrease in respondent's I.Q. and "some cognitive disability." The amount of decrease in

   I.Q. and the nature and extent of the cognitive disabilities are not of record. In any event, the expert was unsure if this was caused by alcohol abuse or by a cerebral aneurysm suffered by respondent in the mid or late 1960's. However, Dr. Goetz did not rule out an increase in mental capacity in the future and respondent's eventual return to medical practice. The witness suggested that, after a year, Dr. French be given a short period of retraining, a mini-residency or some other form of evaluation to determine if he could function as a physician. No evidence was offered to refute this recommendation.

   
   

6. Respondent denies using any alcohol or drugs at the present time, and this was corroborated by Dr. Goetz who said the evaluations conducted in 1987 "did not indicate any usage." Doctor French desires to reenter the medical profession and agrees to several restrictions, such as becoming recertified in family practice, submitting to random testing for drugs and alcohol, and if necessary, being supervised by another physician. He has not practiced medicine in the state since August 1985 when he closed his West Palm Beach office. As to the cognitive disability, respondent denied that he lacks the necessary physical skills to practice medicine pointing out that he practiced medicine for many years after suffering an aneurysm over twenty years ago.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1987).

   
   

8. Because respondent's professional license is subject to revocation in this proceeding, the Board must prove the allegations in the complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Pascale v. Department of Insurance, 525 So.2d 922 (Fla. 3d DCA 1988).

   
   

9. The complaint alleges that respondent violated Section 458.331, Florida Statutes (1985), in two respects. First, it is alleged that respondent's Alabama license was revoked by that state in violation of Subsection 458.331(1)(b), Florida Statutes (1985). Secondly, it is alleged that, by virtue of respondent's use of alcohol, drugs, chemicals or any other type of material or as a result of a mental or physical condition, respondent is unable to safely practice medicine within the meaning of Subsection 458.331(1)(s), Florida Statutes (1985). These charges will be examined separately.

   
   

10. Petitioner's exhibit 1 reflects that respondent's medical license was revoked by the Alabama licensing authority in October 1985. This, in turn, constitutes a ground for disciplinary action under Subsection 458.331(1)(b), Florida Statutes (1985). Accordingly, it is concluded that Count I has been established. 2/

    
    

11. There is insufficient evidence to establish that, because of respondent's use of drugs and alcohol, respondent is now impaired to such an extent that he cannot safely practice medicine. Indeed, the testimony of Dr. Goetz revealed that evaluations of respondent conducted in 1987 showed no usage

    of drugs or alcohol. Further, respondent's denial of present consumption was not contradicted. The evidence shows, however, that as of September 1987, respondent had suffered some decrease in I.Q. and had "some cognitive disability," and because of this, respondent could not then safely practice medicine. Unfortunately, the record does not show if this impairment has been resolved or remains the same as it was when the evaluations were conducted more than a year ago. Thus, the only evidence on the issue, although somewhat stale, reflects that in mid-1987 respondent was unable to safely practice medicine because of a mental and physical condition within the meaning of Subsection 458.331(1)(s), Florida Statutes (1985). This being so, it is concluded that Count II has been sustained.

    
    

12. As to an appropriate penalty, petitioner suggests that respondent's license be revoked subject to reinstatement when and if respondent can demonstrate his ability to practice medicine to the Board's satisfaction. This appears to be far too severe given the circumstances of this case. There is no evidence of record that Dr. French has used drugs or alcohol since 1985, assuming the charges upon which the Alabama license was revoked are true. Cf. Major v. Department of Professional Regulation, Board of Medicine, 13 FLW 2234 (Fla. 3rd DCA, September 27, 1988)(where evidence that previously impaired physician had "fallen off the wagon," board authorized to place licensee on probation). While the 1987 evaluation reflected a decrease in respondent's I.Q. and some cognitive disability, neither of which were described in detail, Dr. Goetz opined that these conditions could improve. Indeed, he suggested that respondent be given a "short period of retraining, a mini-residency or some other form of evaluation" to determine when and if respondent could return to his livelihood. Since a sufficient period of time has expired since that recommendation, and there is no evidence of drug or alcohol usage, respondent should be given the opportunity to return to the active practice of medicine if he can (a) complete successfully a short period of retraining or a mini- residency to be prescribed by the Board, and (b) demonstrate through a Board prescribed evaluation that the impairments that existed in mid-1987 have been resolved. In addition, respondent should be required to submit to random blood or urine testing for such time as the Board deems appropriate. The existing suspension should be lifted when the first two conditions are fulfilled. Such a penalty is consistent with the disciplinary guidelines enunciated in Rule 21M- 20.001(b) and (s), Florida Administrative Code (1987).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsections

458.331(1)(b) and (s), Florida Statutes (1985), and that his license remain

suspended until he successfully completes a Board prescribed short period of retraining or a mini-residency, and he demonstrates through a Board prescribed reevaluation that the mental and/or physical impairments that existed in mid- 1987 have been resolved. Also, respondent should be required to submit to random blood/urine testing for such period of time as the Board deems appropriate.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10th day of November, 1988.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1988.

ENDNOTES

1/ When this case arose, the regulatory board was named the Board of Medical Examiners. In 1988, the legislature renamed it the Board of Medicine.

2/ Respondent's contention that the Alabama proceeding was flawed is rejected. The orders rendered by that state's licensing authority, and which are now final, are prima facie evidence of that state's actions. The undersigned has no authority to retry that proceeding in the case at bar.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0842

Petitioner:

1. Covered in finding of fact 1.

2. Covered in finding of fact 4. 3-6. Covered in finding of fact 2.

7-8. Rejected as being irrelevant to the specific charges in the complaint.

9-13. Covered in finding of fact 5.

14. Covered in findings of fact 5 & 6.

COPIES FURNISHED:

Robert D. Newell, Jr., Esquire 817 North Gadsden Street Tallahassee, Florida 32303-6313

Paul D. French, M.D.

7114 Southgate Boulevard, Suite 9 North Lauderdale, Florida 33068

Dorothy Faircloth Executive Director Board of Medicine

130 North Monroe Street Tallahassee, Florida 32399-0750

Bruce D. Lamb, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

=================================================================

AGENCY FINAL ORDER

=================================================================

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICINE

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

DPR CASE NUMBER: 0059331

-vs- DOAH CASE NUMBER: 86-0842

LICENSE NUMBER: ME 0010248

PAUL D. FRENCH, M.D.,

Respondent.

/

RECOMMENDATION

This cause came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)9, Florida Statutes, on February 4, 1989, in Dania, Florida, for the purpose of considering the Hearing Officer's Recommended Order (a copy of which is attached hereto) in the above-styled cause. Petitioner, Department of Professional Regulation, was represented by Jonathan King, Attorney at Law.

Respondent was present and testified at the hearing.

Upon review of the Recommended Order, the argument of the parties, and after a review of the complete record in this case, the Board makes the following findings and conclusions.

FINDINGS OF FACT

1. Findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein.

   
   

2. There is competent substantial evidence to support the findings of fact.

CONCLUSIONS OF LAW

The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.

The conclusions of law set forth in Paragraphs 1-5 of the Recommended Order are approved and adopted and incorporated herein.

The conclusions of law set forth in Paragraph 6 of the Recommended Order are rejected in part for the reasons set forth below in the explanation of the Board's increase in the penalty recommended by the Hearing Officer. They are accepted to the extent that they are not inconsistent with the aforenoted explantion set forth below.

There is competent substantial evidence to support the conclusions of law.

PENALTY

Upon a complete review of the record in this case, the Board determines that the penalty recommended by the Hearing Officer be increased to revocation. The reasons the Board believes the Hearing Officer's recommendation as to penalty was inadequate is twofold. First, the Hearing Officer's apparent attempt to recommend Dr. Goetz's suggestion reveals that the Hearing Officer misunderstood the testimony. Dr. Goetz did not state that Respondent would be ready to be given an opportunity to return to the practice of medicine upon completion of retraining or a mini- residency, or even that after a year, he would be ready for such retraining. The testimony was:

Q. And in turn the best way to protect the public at this point?

A. The best way to protect the public would be to assure that Dr. French does not practice medicine until such time that he can demonstrate, both for his own safety and for the public's safety,

that he has resumed his ability and mental status.

Q. And you don't believe that he is currently able to do that, demonstrate that?

A. He certainly has not been able to demonstrate it. His recent evaluations have demonstrated a decrease in IQ, some cognitive disability. These matters may or may not clear. I'm sure in a year we'll have a clearer picture of what's going on with Dr. French.

Q. Is it possible that he may never be

able to demonstrate his abililty to practice medicine safely?

A. It's possible that he may never be able to demonstrate that.

The year that Dr. Goetz referred to was only a period of time within which he would "have a clearer picture of what's going on with Dr. French." The Board particularly considered pages 6 and 10 of Dr. Goetz's deposition, noting the acknowledgement of Respondent's reduction of IQ and cognitive function caused by the aneurysm or years of alcohol abuse. (R 102, 106)

The second reason is that the Hearing Officer did, in his justifications of the recommendation, obviously consider only one of the offenses: Respondent's inability to practice medicine with skill and safety. He did not consider and give full weight to the fact of the revocation of October 11, 1985, of

Respondent's license to practice medicine by the State of Alabama--a revocation which took place after Respondent violated a previous action of the Alabama Board documenting his agreement on September 24, 1984, to a voluntary restriction of his license (imposed because of a previous history of drug abuse). (R 81-83) See Rule 21M-20.001, Florida Administrative Code; Major v.

Department of Professional Regulation, Board of Medicine, 531 So.2d 411 (3rd DCA 1988). See also the last paragraph of 458.331(2), Florida Statutes.

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED THAT:

Respondent's license to practice medicine in the State of Florida is REVOKED.

This Order takes effect upon filing with the clerk of the Department of Professional Regualtion.

DONE AND ORDERED this 18th day of February, 1989.

BOARD OF MEDICINE

FUAD S. ASHKAR, M.D. CHARIMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by certified mail to Paul D. French, M.D., 7114 Southgate Boulevard, Suite 9, North Lauderdale, Florida 33068 and by interoffice delivery to Jonathan King, Attorney at Law, Department of Professional Regulation, 130 North Monroe Street, Tallahassee, Florida 32399-0750, at or before 5:00 P.M., this day of , 1989.

(filed Final Order undated)

DOROTHY J. FAIRCLOTH

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER is ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DEPARTMENT OF PROFESSIONAL REGULATION AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 86-000842

Orders for Case No: 86-000842